The SC has now criminalised sex between a man and his minor wife. This has resulted in the partial criminalisation of marital rape.

A rapist remains a rapist, regardless of his relationship with the victim, and this is exactly what the Supreme Court’s decision defines, though only to a limit.

The Supreme Court on Wednesday took yet another historical decision and declared that any type of physical relation is forced by the husband on his wife, who is below the age of 18, then it will be considered as a crime. This bold decision of the court has certainly opened the gates for criminalising marital rape.

The decision to declare sex with the wife under the age of 18 as rape was taken while hearing a petition filed by an NGO Independent Thought vs the Union of India and the case was argued by advocates Gaurav Agarwal and Abhikalp Pratap Singh. The bench a bench of Justices Madan B Lokur and Deepak Gupta said POCSO Act provides that if a person related to a child below 18 years of age commits a penetrative sexual assault on that child, then he would be liable for aggravated penetrative sexual assault.

However, this is just a part of the battle won, to fully criminalise marital rape a complete strike down of Exception 2 to Section 375 of Indian Penal Code (IPC) is necessary to make a husband criminally liable for raping his wife, for all age groups. But unfortunately, this has not been done yet. The court only made provision to increase the age of wife from 15 to 18 years. This exception is literally known as the marital exception to rape.

The parliament amended the rape law, in the wake of the Nirbhaya gangrape case and among other things, raised the age of consent from 16 to 18 years, which means that sexual intercourse with a girl below 18 years is rape, which is, that as per the law now, a girl below 18 is deemed as a child and is incapable of giving consent. But the same legal protection was not accorded to a girl below 18 if she was married. But thanks to this exception in the definition of rape.

Section 375 of the IPC defines rape as specified sexual acts under the circumstances, in subclause 6 it specifies that it is rape, with or without her consent if she is under the age of 18. But provides an exception saying it is not rape, if the husband has sex with the wife, while she being not under 15 years of age.

The petition in the Supreme Court argued that when the law deems a girl below 18 is incapable of giving consent, how can it assume that a girl in the same age group, when married is capable of doing so? The other inconsistency is with the prohibition of the child marriage act, on one hand, the law says that child marriage is illegal, while on the other hand, the same law provides a child marriage exception to rape, the advocate argued.

The Union government had submitted in court that child marriage is a reality in India, the nation has 23 million child brides and criminalising the consummation of marriages as rape would not be appropriate.

Despite the argument given by the government, the Supre Court on 11 Oct criminalised sex between a man and his underage wife. But now the question that arises is, does the Supreme Court judgement imply the consent of the married minor as an obligatory for sex with the husband If so can an adult married woman be denied the same right.

The Delhi High Court is currently hearing petitions asking that marital rape be recognised as a criminal offence. The Delhi High Court in the last hearing on 25 Sep had said that instances of women behaviour are not unknown and added that a feeble no may mean a yes. It was also argued that if one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also be sufficient. But same would not be the situation if the parties are known to each other are intellectually/academically proficient and if in the past there have been physical contact. In such case, it would be really difficult to differentiate whether the no was a no or just a feeble n.o which could be assumed as a yes, the argument went on.

Here the question that arises is, how can anyone decide if the no is a feeble no or not and whether it was really a no or a not be assumed as yes.? The arguments given, clearly discriminated between a no of an uneducated woman and a no of educated women. Why should a women’s no be in any case taken as a yes and especially if it follows rape?

By increasing the age limit from 15 to 18 and declaring sex with the wife under the age of 18 as rape is definitely a step in the right direction, but the journey is not complete yet. The decriminalisation of marital rape in various legal regimes is due to a very outdated rule known as Hale’s principle.

This principle lays down that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” This law was introduced by Sir Matthew Hale in 1736, and it also gave the right to the husband to whip his wife if she denied for sex. Thankfully the latter part of the law has been changed but unfortunately, India still follows the first half of the law.

The court has definitely taken a historic decision, it even blamed the government saying that “What has the government of India done? It has persuaded Parliament to convert what is otherwise universally accepted as a heinous crime into a legitimate activity for the purpose of Section 375 of the IPC if the exploiter or abuser is the husband of the girl child. But, contrarily, the rape of married girl child (called ‘aggravated penetrative sexual assault’ in the POCSO Act) is made an offence for the purpose of POCSO Act.”

Calling sex even with the wife under the age of 18 as rape, the court has given a ray of hope, that soon marital rape will also be recognised as a crime.